By Adam Pagnucco.
Parts One, Two, Three and Four related efforts by County Executive Marc Elrich’s taxpayer-paid staff to save him from a term limits charter amendment which has since been certified for the ballot. The documents indicate that some of these activities occurred on county government work time and all involved use of the county’s email system. That indicates that taxpayer resources were used to try to rescue Elrich from term limits.
Is this ethical? Is it legal?
Three items come to mind.
First, Sec. 408 of the county code states, “All officers and employees of the Executive or Legislative Branches who receive compensation paid in whole or in part from County funds shall devote their entire time during their official working hours to the performance of their official duties.”
Second, the county’s code of regulations explicitly discusses political activity of county employees. COMCOR 33.07.01.03-8 states in part:
Political activity.
(a) An employee may participate in political causes and campaigns on the employee’s own time.
(b) An employee must not use County equipment, supplies, or other property for a political cause or campaign.
Third, the Court of Appeals of Maryland (now known as the Supreme Court of Maryland) dealt with the issue of speech by Montgomery County government on a ballot question in a 2016 decision. The underlying issues stemmed from a 2012 ballot question in which the Fraternal Order of Police (FOP) sought to repeal a county law affecting their bargaining rights. The administration of County Executive Ike Leggett responded by spending $122,350 of county funds on a campaign opposing the FOP’s ballot question. The campaign included mailings, literature, use of county government blast emails, hiring of consultants and more. The county defeated the police at the ballot box and the union filed suit, claiming that the county, Leggett and his public information officer violated several sections of state and county law by engaging in political activity. A circuit court found several violations by the county while the Court of Special Appeals disagreed. That sent the case to the Court of Appeals, the highest court in the state.
The decision is long, complicated and examines many issues. The most relevant to current events is the court’s view of government speech. The court opened with this statement:
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The term “government speech,” in the context of what is before us, is relatively new and arose as part of First Amendment jurisprudence. The broader question of whether, and to what extent, governments or government officials or agencies are permitted to use public funds or government employees to support or oppose ballot measures or pending legislation that may affect the operations of the government or the agency is not new. The answer to that question traditionally has depended on whether such advocacy, ranging from simple informational bulletins to more aggressive political campaigns, is authorized or prohibited by the assortment of laws governing the agency or the election process.
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After examining many examples of case law, the court turned specifically to Montgomery County and the law on collective bargaining that was the subject of the 2012 ballot question contested by the county and the police union. The court commented:
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What we have, then, is a law enacted by the County Council modifying the requirement of bargaining on the effect of the county’s exercise of rights expressly reserved to it in the collective bargaining law—a law intended to correct what the Council found to be behavior by FOP and its members that was disruptive to the proper running of the Police Department and not conducive to public safety. FOP succeeded in petitioning that law to referendum and was mounting a substantial political campaign to persuade the voters to nullify it. The County Executive, in aid of preserving that law and countering that effort, directed the expenditure of funds lawfully appropriated by the Council to the County Office of Public Information, to inform the voters of the impact of nullifying the law and, for the welfare of the county, advocate for its confirmation. We find that to be a proper use of government speech that is consistent with the authority delegated to the Council by the General Assembly and to the County Executive in the County Charter.
We add, as a caution, that we are not dealing here with an attempt by the county to use public funds or public employees to support or oppose (1) any partisan political cause, such as the election of particular candidates for office, or (2) a politically-tainted ballot measure expressing disputed principles of social policy that would neither hamper nor enhance the operations or programs of the county government in any material way. That kind of advocacy, we agree, is not a proper function of government and is not within the permissible ambit of government speech.
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While the court ultimately found in favor of the county government, note the distinction it draws between a “public safety” issue affecting “the welfare of the county” and a “politically-tainted ballot measure.” According to the court, advocacy on the latter “is not a proper function of government and is not within the permissible ambit of government speech.”
So the key under both the ethics code and the court decision is whether the activities of Elrich’s staff were political in nature. There are certainly many policy-based arguments that term limits are not good for government. Check out this long paper by Paul Bessel, a former charter review commission chair, and Barbara Braswell on the subject. Rich Madaleno, the county’s chief administrative officer, made related policy points in his testimony before the county council.
However, there is a political dimension to this issue also contained within the documents. The talking points which were emailed between Elrich’s special assistant Debbie Spielberg and Democratic activist Sam Statland contain the following:
This proposal is targeted at getting Marc Elrich out of office – the spokesperson is Reardon Sullivan who was defeated 75% to 24% in 2022 in the general election. Their early materials were all about why Marc Elrich needed to be removed from office. They are sore losers: they should win at the ballot box rather than to change the County’s charter to defeat one person. Here’s what shows up when searching for the organization:
Please note that they have scrubbed their actual website to remove the reference to Marc Elrich, but the search engine still shows the earlier version when it was about defeating one person. The charter should not be a way to circumvent an election.
Additionally, Madaleno’s testimony contains these statements:
I would point out in the past the council and petitioners have worked together to craft a compromise piece of legislation to put before the voters so that you didn’t even have to go through the actual signature approval process. I would suggest if this isn’t about trying to end the career of Marc Elrich that this would be something where maybe the proponents and the council would say that new term, if we’re going to do two-term limits, it’s going to be for the next two terms in advance. If you want to have that conversation about good government, let’s make it about good government and not necessarily who the current officeholder is. I think that would be a fair approach if you wanted to put this on the ballot and have that conversation about term limits as opposed to making it about one person who they’ve tried to defeat over five different election cycles and failed.
When Elrich’s taxpayer-paid staff makes references to Elrich as a candidate and to his past elections, does that cross the line from policy into politics? And if it does, does it run afoul of the county’s ethics code and the decision by the state’s highest court? Dear reader, what do you think?
I will finish with this. Whether this is ethical, legal or neither, it was incredibly foolish of Elrich’s staff to discuss this in emails subject to release under the Maryland Public Information Act. If they were trying to save their boss from term limits, the prudent thing to do would be to conduct such efforts away from work and use only private resources, not anything under taxpayer control. Using government emails exposed (at least some of) their activities to public scrutiny. The county employees discussed in this series have served in government for many years and should have known better.
Are these efforts continuing? How will the groups supporting and funding the term limits drive react? However these matters continue, their conclusion – and the fate of Marc Elrich – will be known in November.